Plain English Manual. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM]

Transcription

1 Plain English Manual Note 1: The Plain English Manual was released in Note 2: This Manual has the status of a Drafting Direction, although there are some practices suggested in the Manual that the Office of Parliamentary Counsel does not follow. If another Drafting Direction or Word Note is inconsistent with this Manual, the Drafting Direction or Word Note prevails (see Drafting Direction 2.1.). [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM]

2 CONTENTS Plain English Manual... 1 Chapter 1 - Introduction... 5 Background... 5 What this Manual is about... 5 Why draft simply?... 5 Commonwealth precedents... 5 What is plain English drafting?... 6 HOW TO DRAFT SIMPLY... 6 Skills, habits and determination... 6 Techniques of simple drafting... 6 GENERAL PRINCIPLES DRAFTING OR FUZZY LAW... 7 Background... 7 When to use this style... 7 The drafter s role... 7 Chapter 2 - Planning the draft... 9 WHAT THIS CHAPTER IS ABOUT... 9 THE BENEFITS OF PLANNING... 9 Better planning results in a better Bill... 9 Avoid band-aid fixes... 9 Concentrate on substance instead of form... 9 Fine-tune terminology and ways to present information Improve your understanding of your instructors goals PRODUCING A GOOD PLAN Identify the goals Reduce the number and complexity of the concepts Concentrate on the important principles Make sure your instructors understand the plan Record things that will not be included in the Bill AIDS TO PLANNING Introduction Tables Notes in normal text form Diagrams White board CONSULTATION Chapter 3 - Language: good writing habits WHO ARE OUR READERS? SENTENCES Well constructed sentences If... then Short sentences Use definitions WORDS Short words Acronyms Jargon and technical terms Chapter 4 - Language: traditional practices to avoid WORDS AND PHRASES [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 2

3 Lists of traditional words and simpler equivalents And/or : why not use it? Anything to the contrary contained in Called in question Cases Contravene or fail to comply He, she or it, who and that Ordinal numbers (1st, 2nd, etc) Period Possessives Pronouns (it, them, they, etc) Provisions of Shall, must and is to Subject to this Act and subject to this section Where, if and when SENTENCE STRUCTURES Age 65 limit on appointments Back-references in associated provisions Body, etc to which this section applies Classes Duplicated adjectives Duplicated nouns Duplicated verbs Participles and relative clauses Proportions Unnecessary repetition - negatives Unnecessary repetition - noun phrases Chapter 5 - Aids to understanding STRUCTURE Arranging the provisions Grouped amendments Specifying the topics Avoid slabs of unbroken text Limiting the number of subsections in a section Subsection headings Paragraphing Tables And or or at ends of paragraphs, etc LAYOUT AND DOCUMENT DESIGN CALCULATIONS AND PROCEDURES User-friendly algebraic formulae Calculations in steps Procedures in steps DEFINITIONS Where to put them Sign-posts Identifying defined terms Section headings: Definitions or Interpretation? Definitions within the sentence Referential definitions [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 3

4 READABILITY AIDS Objects clauses Road maps and summaries s Graphics Notes Section headings in question form Readers guides Alphabetical indexes Appendix 1 - s of planning tables Appendix 2 - s of planning diagrams Diagram Diagram Diagram Appendix 3 - Words and phrases [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 4

5 Chapter 1 - Introduction Background What this Manual is about 1. This isn t a manual on the whole subject of drafting. The subject covers a very wide field and there are already books and courses on it. This is about only one aspect of drafting: making drafts easier to understand. 2. This Manual doesn t deal with questions of format or with methods of numbering. Both these matters are still being considered by this Office. 3. Nor does it deal with traditional practices that this Office abandoned many years ago, eg: the expressions section 5 of this Act, subsection (3) of this section, etc; or provisos; or expressions like hereinbefore, hereinafter, etc. These were removed from our statute book many years ago. Why draft simply? 4. Our first duty is to draft laws that do all the things the policy instructors want, and don t do anything else. This means our laws must be precise, except when we deliberately use general principles statements (see further below). 5. We also have a very important duty to do what we can to make laws easy to understand. If laws are hard to understand, they lead to administrative and legal costs, contempt of the law and criticism of our Office. Users of our laws are becoming increasingly impatient with their complexity. Further, if we put unnecessary difficulties in the way of our readers, we do them a gross discourtesy. Finally, it s hard to take pride in our work if many people can t understand it. 6. Complex policy, lack of time, changes of policy and other factors will always make it hard for us to draft simple laws. However, we can usually do a lot to reduce their complexity, and we can always avoid creating unnecessary difficulties caused by bad drafting habits. Commonwealth precedents 7. Australia inherited the traditional style of drafting used in the United Kingdom in the 19th century. It has many examples of bad writing - long, badly constructed sentences, archaic words and phrases and strings of unnecessary words. The Commonwealth added to these faults in the 1960s and 1970s by putting too much emphasis on precision and not enough on simplicity. 8. Since 1986 this Office has been moving away from the traditional style. We look for ways to make laws easier to understand, and drop conventions that have led to bad writing in the past. In this Office, the ability to draft simply is now regarded as one of the essential qualities of a good drafter. 9. This historical background means that you have to use your discretion with precedents from Commonwealth Acts. Since 1986 there have been many developments, but they have happened in stages, and more in some Acts than in others. When using a precedent, you have to be alert to the fact that it may not use all the techniques mentioned in this Manual. Even if [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 5

6 it does, you may be able to improve it further. We must always be open to ways of improving our style. What is plain English drafting? 10. The expression plain English has been adopted by movements in the USA, the UK, Canada and Australia. In Canada they call it plain language because their laws are bilingual. There are different approaches, but the aim is the same: to simplify all official writing by removing unnecessary obscurity and complexity. 11. The Office policy is to draft in plain English, but to do more than that. It is to develop a whole art of making laws easy to understand. However, to avoid confusion, it s convenient to call this policy plain English drafting. HOW TO DRAFT SIMPLY Skills, habits and determination 12. To draft simply you need the skills, the right habits and a lot of determination. Complex policy, lack of time and the need for precision conspire against you. If you re to succeed, you must: Know how to draft simply. Cultivate good habits in all your writing, not just Bills. Always try to draft simply, even when the difficulties mentioned above are working against you. Always ask yourself How will this look to my readers?. Always remember that your readers don t know your thought processes. Your draft is easy for you to understand because you wrote it, but it might be a complete mystery to someone else. Techniques of simple drafting 13. The most important rule of simple drafting is that no rule is absolute, so this Manual uses the word technique. You should know all the techniques, but you will judge which to use in each case. If you use them too rigidly, you can make your drafts less easy to understand. 14. The techniques can be divided into 4 broad classes: Planning your draft properly. This is dealt with in Chapter 2. Developing good writing habits by following rules that have been developed by good writers of all kinds of documents, including literature, textbooks and technical manuals. This is dealt with in Chapter 3. Avoiding bad writing habits by rejecting traditional forms of legal expression that are unnecessarily obscure or long-winded. This is dealt with in Chapter 4. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 6

7 Using various aids to understanding the text. They re not based on language, but on the way you present your material, eg graphics, examples, document design, etc. These are dealt with in Chapter 5. GENERAL PRINCIPLES DRAFTING OR FUZZY LAW Background 15. This is the style used when you deliberately state the law in general principles and leave the details to be filled in by the courts, by delegated legislation or in some other way. It has one big advantage: it s very easy to read, and the general purpose of the law is easy to understand. But it has a big disadvantage: the precise meaning is uncertain. 16. Drafters trained in common law countries have traditionally avoided this style on principle, assuming that the users of the legislation don t like it (or wouldn t like it if they knew about it). However, if you use this style properly, it can be an important technique to simplify the law. When to use this style 17. The most obvious time to consider using it is when you have to cover a wide range of alternatives in minute detail, or when your instructors can t be sure of covering every possible alternative. If you can use a simple general statement that will certainly cover most of the alternatives, but might not cover all of them, your Bill will be a lot simpler. 18. However, the policy instructors must decide whether you use the simple form or the detailed one. They have to weigh up the political and practical results of having a law that might not cover some of the alternatives. The drafter s role 19. You need to be on the lookout for cases where this style might be used, because you, to a greater extent than your instructors, have the expertise to recognise them. Then explain the options to your instructors and get them to decide. 20. Before using this style in a provision, follow these principles: Tell the instructors how complex the detailed form is likely to be and how you could draft it in a simpler form. Tell them about the areas of uncertainty with the simpler form. Make sure they fully understand the likely effect of the uncertainty. Discuss with them the degree of generality to be used. There is a huge range of levels of generality. For example, the whole of the liability provisions of the Income Tax Assessment Act could be reduced to 2 subsections, but the result would be enormous uncertainty as to their effect. Discuss with them whether the details should be filled in by delegated legislation or administrative rulings, or whether the provision should just be left to be interpreted by the courts. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 7

8 Remind them that just relying on the courts may be unacceptable in some cases. For example, people should not have to go to court to find out their pension entitlements. section 69 of the Income Tax Assessment Act, as amended in 1990, in essence, allows a deduction for expenditure in respect of the management or administration of the income tax affairs of the taxpayer section 25 of that Act uses the expression gross income (without definition) section 52 of the Trade Practices Act 1974 says: A corporation shall not... engage in conduct that is misleading or deceptive.... [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 8

9 Chapter 2 - Planning the draft WHAT THIS CHAPTER IS ABOUT 21. Much of this Manual concentrates on the ways to present ideas clearly in a draft Bill. This chapter deals with the equally important topic of planning a drafting project before starting to draft the Bill. 22. The ideas in this chapter are suggestions only. If you have a different approach that works better for you, stick to it. THE BENEFITS OF PLANNING Better planning results in a better Bill 23. There s a close connection between the clarity of thought that goes into designing a legislative scheme and the clarity of the text that embodies it. A well thought-out, clear and simple scheme is much easier to put into clear and well-arranged text. Also, clear, simple concepts are easier to use than vague or intricate ones. You can do a lot in the early stages of the drafting process to avoid complexities that could arise later. 24. Drafting is like designing and building a machine. Just as a machine is designed to perform a particular function, an Act is also designed to perform a particular function. For example, an Act might be designed to regulate the sale of dangerous goods; to raise money; or to protect the environment. 25. A machine built without a plan isn t usually very successful. Similarly a draft Bill prepared without previous planning may be more complicated and less clear than a Bill prepared with the benefit of a detailed plan. By settling a detailed plan before starting to draft, you can select the drafting structure, terminology and approach that best suit the function of the draft. Avoid band-aid fixes 26. If you make fundamental changes to the design of a machine during construction, you re likely to run into serious problems. You may have to choose between starting again (and losing time) or ending up with a poorly designed machine. Imagine how you would feel if you had almost finished building a vehicle that was to run on petrol, and you were told at the last moment that it should also be able to run on electricity. 27. You can have similar problems if you start to prepare a draft without having first agreed with the instructors on the basic aims and critical building blocks of the Bill. For example, if you ve prepared a detailed Bill to regulate the payment of dividends by companies, it ll be very difficult to give effect to a last minute policy decision that the rules should also apply in a similar way to distributions by trusts. The more you plan the Bill with your instructors before drafting it, the less likely it is that they will ask for fundamental changes at an advanced stage of the drafting. Concentrate on substance instead of form 28. If you begin drafting before settling a plan, you risk getting unduly distracted by thinking about drafting points instead of concentrating on what the draft is meant to do. Also, [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 9

10 drafting points might distract your instructors from their important job of first considering and settling all the policy issues. Fine-tune terminology and ways to present information 29. Discussing the plan with your instructors can be a useful way to test the suitability of terms that you might use in the Bill. If a term causes misunderstanding during discussions, try to choose a better one. 30. While planning a draft, you have an opportunity to try different ways of recording the rules (eg tables and diagrams). You have the added benefit of getting comments from your instructors about the clarity (or otherwise) of a particular way to present information. Improve your understanding of your instructors goals 31. In a plan, you can write in a less technical way than in a draft (eg without the constraints of subsections, paragraphs etc). You can also put extra explanations in the plan that wouldn t normally be included in a Bill (eg explanations of matters that are dealt with in the Acts Interpretation Act, Crimes Act etc). As a result, it s likely that your instructors will better understand the effect of the plan, and you will better understand what your instructors want. PRODUCING A GOOD PLAN Identify the goals 32. It s a great help to planning if you can establish the main goals and principles at an early stage. These can then be used as a benchmark for testing the more detailed rules needed to achieve the goals. Reduce the number and complexity of the concepts 33. Complicated ideas lead to a complicated Bill. Your final Bill will be simpler (and probably shorter) if your plan is based on the smallest number of pieces (concepts) that are needed to perform the function of the Bill. An important part of the planning process is to work towards identifying this ideal minimum. 34. A concept must earn its place. Identify the role of a particular concept before accepting that it ll be included in the Bill. 35. Look out for variations on the same theme. For example, you may be asked to set up systems of regulations, Ministerial determinations and Ministerial orders, each with the goal of identifying prohibited imports. Before starting to design the 3 systems, find out whether a single system would achieve your instructors goals. Concentrate on the important principles 36. Some matters are so fundamental that any late changes will cause serious drafting problems. Identify and emphasise these matters. Other matters aren t likely to have much impact on the general structure and concepts of the Bill. Don t waste too much of the early planning time in trying to settle the fine details of the matters that don t affect the structure or main principles of the draft. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 10

11 Make sure your instructors understand the plan 37. One of the most important functions of the plan is to settle important policy issues before you start to draft. It s therefore crucial that your instructors are involved in formulating the plan and fully understand it. 38. The more you help your instructors understand the plan, the less likely it is that they ll want fundamental changes after you start drafting. Don t be content merely to state the rules. Go on to explain and emphasise their effects, which may be obvious to you but not so obvious to your instructors. s are a useful way to do this. 39. Make the plan easy to understand and easy to navigate (eg by including cross-references and a table of contents). The easier it is for your instructors to use, the more likely it is that they ll read it and understand it. Making special efforts to produce a user-friendly plan is also good practice for making the Bill more user-friendly. Record things that will not be included in the Bill 40. From time to time during the planning stage, you ll agree with your instructors that particular matters will not be included in the Bill, eg because they ll be dealt with administratively or by regulations. Record these agreements in the plan so that you don t have to reopen discussions later when the agreement may have been forgotten. Of course, Government policy may change later, but it s still useful to have a record of the original agreement. AIDS TO PLANNING Introduction 41. If you choose to prepare a detailed plan before starting to draft the Bill, you have to develop a method of recording the current state of the plan. This section discusses some of the methods you can use to develop and record your plan. Tables 42. Tables are a useful way to record some aspects of a drafting plan. Appendix 1 has examples of tables that could be used in the planning process. Notes in normal text form 43. If some of the plan can t be usefully presented in the form of tables, you can use normal text layout (preferably prepared with a word processing program or similar program that allows easy revision). Diagrams 44. Diagrams can be an excellent planning tool. A functional diagram of the important rules in the plan can be a useful focus or testing ground in discussions with instructors. Decision diagrams can help to clarify rules and identify errors of logic. Also, if you ve found them very useful in discussions, you might include them in the Bill. 45. Appendix 2 has examples of diagrams that could be used in the planning process. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 11

12 White board 46. A white board can be an excellent aid to discussions with instructors during the planning phase. You can use it to draw diagrams to illustrate a particular problem or proposal, or to sketch out in words the important elements of a particular rule. It s often much easier for your instructors to analyse a proposal on the white board than to comment on a purely oral description. Recording an agreed diagram can also be a quick way of recording policy decisions. CONSULTATION 47. If you use the plan before you draft system, the first draft Bill won t be ready until near the end of the project. You might therefore have to have consultations with Departments, etc on the basis of the plan rather than on the basis of the draft Bill. In effect, you have to find alternatives to the standard Office procedures by which the draft Bill is the vehicle for consultation. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 12

13 Chapter 3 - Language: good writing habits WHO ARE OUR READERS? 48. You have to strike a balance between precision and simplicity. To do this, it helps to know who your readers are and why they read the law. For example, tax laws are scrutinised with infinite care by professional advisers looking for ways to minimise tax. They must be drafted very precisely to have the right effect. On the other hand, provisions defining the functions of an advisory body don t have to be nearly so precise. 49. This doesn t mean that tax laws needn t be drafted simply, or that laws establishing authorities needn t be precise. It s a question of balance. You have to decide how much emphasis to give to precision and how much to simplicity. 50. Sometimes you can decide who most of the users of a law will be, and then deliberately aim at them, as in the case of the Social Security Act However, we usually write for a variety of users, and all our laws are also read by administrators, members of Parliament, lawyers and the judiciary. Legislative drafters are possibly the only people who habitually write highly technical documents for such a wide range of readers. 51. There isn t a complete solution to this problem. The best you can do is avoid all unnecessary complexity. If you use the various techniques of simple drafting, you can reduce complexity to the minimum that is forced on you by the subject-matter. SENTENCES Well constructed sentences 52. Construct your sentences simply and logically. Some ways of doing this are: Use the positive rather than the negative. say a form is valid only if the taxpayer has signed it don t say a form is not valid unless the taxpayer has signed it. Avoid double and triple negatives. But remember that sometimes a double negative doesn t equal a positive. the Secretary has not certified that the grantee has not made an application is not the same as the Secretary has certified that the grantee has made an application. Avoid complicated or unusual grammatical constructions. don t put long phrases in parentheses in the middle of sentences. Use the active voice rather than the passive voice. say the Authority serves a notice don t say a notice is served by the Authority. Put adverbial phrases after the verb when there s no ambiguity. say the Minister may issue the licence within 30 days after receiving the application don t say the Minister may, within 30 days after receiving the application, issue the licence. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 13

14 Use paragraphs to separate lists of alternative or cumulative matter from the main structure of the sentence. Avoid excessive shortness if adding some words would make a phrase or sentence easier to understand. Keep related words as close together as possible. keep the subject close to the verb keep auxiliary verbs (is, are, must, has, etc) close to the main verbs keep modifiers close to the words they modify. Use parallel structures to express similar ideas. don t mix conditions and exceptions, or if and unless clauses, in the same sentence. Avoid noun strings (nouns strung together to act as adjectives). say grants for programs for providing child care don t say child care delivery program grants. Avoid the false subject there is, there are, etc. It adds extra words, and usually creates an unnecessary relative. don t say if there are any conditions that do not comply with this section say if any conditions do not comply with this section. Don t use the such... as form when it s not necessary. say take appropriate steps, not take such steps as are appropriate say conditions determined by the Minister, not such conditions as are determined by the Minister. Don t use demonstrative adjectives if you don t have to. say the company or the notice, not that company or that notice (but that time is usually less ambiguous than the time ). Apart from being more logical, this avoids the occasional occurrence of the expression that that as in the phrase has the result that that company.... When you use other than, make it clear which words are qualified by the phrase. say a person (other than a policeman) who is under 60, not a person other than a policeman who is under 60. Don t use being and not being to join relative clauses. don t say a person who is 70 or over, being a person who has a driving licence say a person who is 70 or over and has a driving licence. If... then 53. Some writers on plain English say that you shouldn t put a conditional clause before the main verb. Some even say that Turkish and Japanese are the only languages that do this. On the contrary, it s perfectly natural in English as well as in many other languages. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 14

15 54. In drafting, you often need to put the conditional clauses first because they spell out all the facts, and the main clause would be meaningless without them. However, if the main clause is very simple and the conditional clauses are long and/or numerous, put the main clause first. This way, the reader knows what it s about before ploughing through the paragraphs. Short sentences say: A contract is void if it: (a) (b) (c) don t say: If a contract: (a) (b) (c)...; or...; or...; or (etc)...; or...; or...; or (etc) the contract is void Usually a sentence has a beginning, a middle and an end. The reader can t be sure of its structure until reaching the end, so a long sentence forces the reader to hold a number of ideas in suspense. The relationship of those ideas isn t clear until the structure of the sentence is finally known. 56. Also, the more suspended ideas there are in a sentence, the more difficult it is to see its structure. Further, a long sentence presents a large number of ideas all at once. Research has shown that the average reader can hold only a few ideas at a time in the memory, before needing to pause and put them together. 57. These are some ways of keeping sentences short: Be ruthless in eliminating unnecessary words. Keep lengthy qualifying clauses (eg exceptions, conditions, etc) out of the main proposition and deal with them in separate subsections or even separate sentences in the same provision. Avoid strings of alternative words, especially if they appear more than once in the sentence. Use a short generic word to cover the alternatives, and define it separately if necessary. Don t obscure the structure of an operative provision by filling it with descriptions of complicated concepts. Use short terms in the operative provision and define them separately. Don t make verbs into nouns. Using the verb form results in fewer words and the words are usually shorter. say a person may apply, not a person may make application say in determining the question, not in the determination of the question [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 15

16 say giving advice, not the giving of advice say acquiring, not the acquisition of. Use definitions 58. You can use definitions not only to give precision to a term or phrase but also to shorten your text. If you need to use a phrase of 2 or more words many times, consider giving it a short label and defining it. 59. You can also reduce complicated concepts to definitions and use the defined terms in the operative provision. This dramatically shortens the operative provision and makes its structure easier to understand. Some advocates of plain English argue against this, particularly if you create what they call artificial concepts. However, the gain in simplicity of the operative provision outweighs the possible disadvantages of using definitions. 60. If possible, choose distinctive labels that give a clue to the meaning of defined terms. The traditional style often uses colourless terms like the prescribed amount or the relevant person. These make a provision harder to understand, especially if there are 2 or more terms of this kind in a complicated provision. It s usually possible to find a key word that helps the reader keep the meaning of the term in mind. 61. Try to keep defined terms short. The label can be short because the details are set out in the definition. 62. Don t overuse definitions. Don t define a phrase if it s brief and isn t used very often. Don t define a subsidiary concept solely for use in another definition unless spelling it out would make the main definition too complicated. WORDS Short words 63. It s a general rule of good style to use short words instead of long ones. This is particularly important in legislative drafting, because inevitably some sentences are long and/or complex. Long words make sentences harder to understand. 64. Of course it can be argued that using a short word rather than a long one in a particular sentence may make only a small improvement in readability. However, if you try to use short words whenever you can, you develop the habit in all your drafting, and the overall effect is a simpler style. Acronyms 65. Sometimes you can avoid repeating lengthy expressions by using acronyms, eg CFCs for chlorofluorocarbons, or AFP for Australian Federal Police. It s best if the acronyms are used in common speech, but there s nothing wrong with inventing new ones if the full expressions are long and are repeated many times in the text. Make sure you define all your acronyms, even familiar ones. AFP means the Australian Federal Police; PDF (pooled development fund) means a company in relation to which a registration declaration is in force. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 16

17 Jargon and technical terms 66. Avoid jargon, legalisms and foreign language if you can use familiar words or expressions instead. On the other hand, use technical words and phrases if they re generally understood by most of the users of the law or you can t find simple alternatives that are precise enough. 67. If a wide range of people use the law, define the technical terms for the benefit of those who may not know them (if you can define them briefly and accurately). But if only specialists are likely to read it, eg an Act dealing with admiralty jurisdiction, there s no need to define terms of art like action in rem and action in personam. Similarly, in a general law, sections on evidence don t need to define prima facie, because those sections are mainly relevant to lawyers. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 17

18 Chapter 4 - Language: traditional practices to avoid WORDS AND PHRASES Lists of traditional words and simpler equivalents 68. Appendix 3 sets out some traditional words and phrases with suggested simpler equivalents. Use your discretion with these: some of the equivalents may not be appropriate in every case. And/or : why not use it? 69. The traditional style avoids and/or. The usual argument is that it s ambiguous and/or inelegant. However, it can be useful at times. Don t use it at the ends of paragraphs, subparagraphs or sub-subparagraphs. Make sure it s not ambiguous. say horses and/or sheep don t say horses and/or sheep or goats. Anything to the contrary contained in 70. When the traditional style makes a provision override another provision of the same Act, or override another Act, it uses the form notwithstanding anything to the contrary contained in this Act/the XYZ Act. This is unnecessarily elaborate, because if a provision isn t to the contrary, there s no need to deal with it. Called in question say despite anything else in this Act, or despite the XYZ Act. 71. A standard provision in traditional legislation says that an appointment, etc, shall not be called in question on the ground that.... This is silly, because we can t prevent a point from being argued in court. However, we can ensure that the argument fails. Cases say is not invalid because When a provision is broken into paragraphs that refer to a series of alternatives, the traditional style often refers to cases unnecessarily or in a cumbersome way. don t say: say: or say: (a) in a case to which section 5 applies-... (a) if section 5 applies-... (a) in a section 5 case-.... You can do this even if the last paragraph starts with in any other case Each situation is a case even if you don t call it a case. Another way of dealing with the last paragraph is to start it with otherwise A legitimate use of the word case is to show that one paragraph applies, whether or not one or more others do too. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 18

19 (a) if... - ABC; (b) if... - CDE; (c) in any case - XYZ.. Contravene or fail to comply 74. In the traditional style, contravene is treated as not covering omissions. This was probably never right (see R v Commonwealth Court of Conciliation and Arbitration 89 C.L.R. 636 at 649), but the position has been put beyond doubt by paragraph 22(1)(j) of the Acts Interpretation Act. don t say contravene or fail to comply with say contravene. 75. Some traditional provisions say fails to comply with a condition with which it is (his) duty to comply. However, you can t fail to comply with something if it doesn t apply to you. say fails to comply with a condition. He, she or it, who and that 76. It s Office policy to use gender-inclusive language. However, this can sometimes lead to cumbersome expressions like he, she or it, him, her or it and his, her or its. Try to avoid these by rearranging the sentence so as to do without the pronouns altogether. If you can t solve the problem any other way, consider just saying it and its, and adding a note at the end of the definitions section setting out paragraph 23(a) of the Acts Interpretation Act. Whether or not you do this, remember you can use that instead of who even when referring to individuals (Fowler, 2nd ed., p.625). Try at all costs to avoid saying who or that. Ordinal numbers (1st, 2nd, etc) 77. The traditional style used to express all numbers in words. Even after cardinal numbers were expressed in figures, ordinal numbers (1st, 2nd, etc) were not, because it was thought that abbreviations were improper. Express these numbers as follows: Period up to and including tenth - spell them out above tenth - say 11th, 12th, etc. 78. The traditional style often unnecessarily adds the word period when the period is specified. don t say within the period of 12 months beginning on 1 July 1999 say within 12 months beginning on 1 July [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 19

20 If you have to refer back to the 12 months later in the section, you can still say that period. 12 months is a period of time, whether or not you call it a period. Possessives 79. The traditional style always uses the long form of possessive, but the contracted form is shorter. don t say of the Minister, of the Commissioner, of the Corporation say the Minister s, the Commissioner s, the Corporation s. 80. In the traditional style, the word whose is not used with inanimate objects, so of which is used instead. This often leads to the cumbersome structure called the delayed relative. don t say a body corporate the assets, rights, liabilities and obligations of which... Pronouns (it, them, they, etc) say a body corporate whose assets, rights, liabilities and obligations The traditional style doesn t use these words often enough. Possibly for fear of ambiguity, it repeats the noun instead of using the appropriate pronoun. However, this has become habitual even when there s no risk of ambiguity. The result is longer sentences, especially when the noun consists of two or more words. Say it, them, they, etc whenever there s no ambiguity. Provisions of 82. The traditional style commonly uses expressions like under the provisions of section 5, etc. The expression the provisions of is usually unnecessary unless it is used as a convenient label to describe a list of different provisions, so that it can be used again later when referring back to the same list of provisions. don t say Subject to the provisions of section 5... say Subject to section Shall, must and is to 83. The traditional style uses shall for the imperative. However, the word is ambiguous, as it can also be used to make a statement about the future. Moreover, in common usage it s not understood as imposing an obligation. Say must or must not when imposing an obligation, not shall or shall not. If you feel the need to use a gentler form, say is to or is not to, but these are less direct and use more words. We shouldn t feel any compunction in using must and must not when imposing obligations on the Governor-General or Ministers, because shall and shall not were acceptable in the past. 84. The traditional style sometimes uses shall in declaratory provisions. This Act shall cease to have effect... [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 20

21 An authority shall be established... The Authority shall consist of 10 members.. These are neither imperatives nor statements about the future, they are declarations of the law. say: This Act ceases to have effect... An authority is established... The Authority consists of 10 members.. Even if the event is yet to happen, the law speaks in the present because an Act is always speaking. Subject to this Act and subject to this section 85. These expressions are very unhelpful to readers. Try to avoid them if possible. It s far better to specify the provisions you have in mind. Where, if and when 86. The traditional style uses where to introduce a set of facts, but in common usage the word conveys the idea of place. Say if to introduce a set of facts. But if the event is so certain that if is inappropriate, use when. don t say Where a person is granted a licence say If a person is granted a licence. If the Act provides that it ceases to have effect on 1 July 1999, don t say Where this Act ceases to have effect say When this Act ceases to have effect. SENTENCE STRUCTURES Age 65 limit on appointments 87. The standard provision limiting statutory appointments to age 65 is cumbersome, because it spells out the cases of a person who is 65 before appointment and a person who becomes 65 after appointment. It can be shortened without changing its effect. say A person who is 65 or over cannot hold office as Chairperson of the XYZ Authority.. Back-references in associated provisions 88. In a section with several subsections, the traditional style binds the later subsections to the earlier ones by back-references. This is often unnecessary. don t say: (1) A person may apply to the Minister under this section for a licence. (2) An application under subsection (1) must be accompanied by the prescribed fee. (3) On receiving an application made by a person under subsection (1), the Minister may issue a licence to the person. (4) A licence issued under subsection (3) must be in the prescribed form. (5) A licence issued under this section authorises the holder to... [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 21

22 say: or say: (1) A person may apply to the Minister for a licence. (2) The application must be accompanied by the prescribed fee. (3) The Minister may issue a licence to the applicant. (4) The licence must be in the prescribed form. (5) The licence authorises the holder to... (1) A person may apply to the Minister for a licence. (2) An application must be accompanied by the prescribed fee. (3) The Minister may issue a licence to an applicant. (4) A licence must be in the prescribed form. (5) A licence authorises the holder to If you have to identify a number of concepts and then refer to them repeatedly in later subsections, use an introductory subsection to set the scene. (1) This section applies to an applicant who, under an agreement under section 5, is granted an amount to be spent on erecting a building. Later subsections can then refer simply to the agreement, the amount, the applicant, etc. 90. Sometimes you can use the same approach to link successive clauses, but this requires more caution because there is a greater risk of misunderstanding. Body, etc to which this section applies 91. If a section states that it applies to an entity, etc and there are later references to the entity, the traditional style often uses clumsy definitions for the references. A body is a body to which this section applies where..., or: body to which this section applies means.... Later references are to the phrase a body to which this section applies. This is unnecessarily elaborate. Classes say This section applies if... or say: This section applies to a body if..., or say: In this section, `body means... then in later references, you can just say the body. 92. Traditional (Commonwealth) style takes great pains to distinguish between a class and its members. Let s hope this piece of pedantry has been finally laid to rest by subsection 46(2) of the Acts Interpretation Act. don t say a specified person or a person included in a specified class of persons say a specified person. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 22

23 Duplicated adjectives 93. In the traditional style, adjectives are repeated unnecessarily when the noun is expressed in the singular and the plural. Duplicated nouns don t say another application or other applications, or a prescribed company or prescribed companies. say any other application or applications, or any prescribed company or companies In the traditional style words are sometimes repeated unnecessarily, perhaps through a desire to repeat the exact words of a phrase set out in another section of the Act. if section 5 states This section applies to a person who..., Duplicated verbs don t say a person who is a person to whom section 5 applies say a person to whom section 5 applies. 95. If a sentence has singular and plural subjects, the traditional style uses the verb in both the singular and the plural. Fowler states that we can make the verb agree with the nearer of its subjects (2nd ed., p. 402, para 3). Participles and relative clauses don t say the corporation has, or corporations have, entered into an agreement say the corporation or corporations have entered into an agreement, or use the passive and say an agreement has been entered into by the corporation or corporations. 96. Relative clauses (that has, that was issued, etc) are longer than participles (having, issued, etc). don t say: a corporation that has been prescribed for the purposes of this section say: a corporation prescribed for the purposes of this section. 97. The participle also avoids difficulties when both the present and past tenses are used in the same sentence. don t say a licence that is or was issued say a licence issued. 98. When a provision refers to the beginning (or end) of a period, the traditional style doesn t use the present participle if the period began (or ended) before the commencement of the provision. don t say the grant year that began/ended on 1 July 1930 Proportions say the grant year beginning/ending on 1 July The traditional form an amount that bears to... the same proportion as... bears to... is often very cumbersome, especially when the factors themselves are long. Don t use it. Use a formula instead. an amount worked out using the formula: [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 23

24 Amount received The partner s share The shares of all the partners Unnecessary repetition - negatives 100. The traditional style sometimes repeats too much when expressing the negative. In the following example, subsection (2) has to negate the effect of subsection (1). (1) A tertiary education institution that has complied with section 5 must do X. don t say: (2) A tertiary education institution that has complied with section 5 is not required to do X, if... or: (2) Subsection (1) does not apply to a tertiary education institution that has complied with section 5, if... say: (2) Subsection (1) does not apply if.... Subsection (1) has spelt out the whole case, so you don t need to spell it out again when expressing the negative. Unnecessary repetition - noun phrases 101. In the traditional style, if a provision introduces an entity described by several words, it repeats the whole phrase every time the entity is later referred to in the provision. if the section introduces the concept tertiary education institution, just say the institution in later references (in the same section). [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 24

25 Chapter 5 - Aids to understanding STRUCTURE Arranging the provisions 102. Even when the words and sentences in a Bill are clear, it s more difficult to understand if the provisions aren t properly arranged. Arrange your Bill so that the relationship between provisions is as clear as possible. If the reader can see a pattern in the provisions, the details are easier to understand These are some ways of improving the arrangement of a Bill: Group together provisions with a common subject-matter (see also Grouped Amendments, paragraph 104). Group related concepts in a way that makes the relationships easy to understand. Arrange provisions in a time sequence. deal first with the application for a licence, then the issue of the licence, then the conditions of the licence, then renewal and finally revocation. Express similar ideas in provisions with similar structure. sections 18-21A of the Foreign Acquisitions and Takeovers Act 1975 and sections of the Sales Tax Assessment Act Put general or important propositions first, then particular or less important propositions, then exceptions, then administrative provisions, then offences, etc. Grouped amendments 104. An amending Bill can be made easier to understand by grouping the amendments according to subject-matter, instead of just following the order of the sections in the Principal Act. Social Security Legislation Amendment Act (No. 3) 1991 or Corporate Law Reform Act If the same provision is being amended for different purposes and the amendments commence on the same day, make them commence in sequence, one immediately after the other. Specifying the topics 105. Research has shown that text is easier to understand if the overall topic is specified at the beginning. If the reader has a mental picture of the whole proposition, it s easier to see the significance of the parts and the way they relate to each other, and it s easier to concentrate on the details On the other hand, without a topic specifier, the reader has to construct a mental picture by absorbing details one at a time and fitting them together. This makes it much harder to understand the significance of the details before the whole picture is in mind. It s like doing a jigsaw puzzle when you don t have the picture on the box. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 25

26 107. Headings are excellent topic specifiers. You can increase the number of headings in several ways: Multiply Part, Division and Subdivision headings by gathering together provisions with a common subject matter and placing them in a separate Part, Division or Subdivision. Multiply section headings by limiting the number of subsections in each section. If you can t avoid having a very long section, you can use subsection headings (see Subsection Headings, paragraphs ). Avoid slabs of unbroken text 108. Large slabs of unbroken text are particularly daunting to the reader. A rough guide is the 5 line rule 1 : don t have a slab of unbroken text more than 5 lines long, unless you feel you can t avoid it The traditional style allowed only one sentence in each subsection or undivided section. This often resulted in very long sentences. Consider using 2 or even 3 sentences when appropriate, but don t use more than 3 unless you have a very good reason. Multiple sentences can raise problems with cross-references It s usually better to break a slab of text into separate subsections, each containing only one sentence. This results in short subsections, each expressing a single idea. It also helps in cross-referencing. If you use the narrative style (see Back-references in Associated Provisions, paragraphs 88-91), separate subsections don t add much to the total number of words On the other hand, a single complex proposition expressed in a string of short sentences or subsections can sometimes be more difficult to understand if the reader has to reconstruct the whole proposition before it makes sense. If the reader must carry several ideas in mind at once in order to grasp a single proposition, consider saying it in a single sentence, with appropriate paragraphing to make the structure clear. Limiting the number of subsections in a section 112. A page full of subsections without headings to break them up is very daunting to the reader. On the other hand, a page broken up into several sections, each with a heading, is more friendly and reassuring to the reader. The sections are easier to find, and the headings help to show what they re about It s impracticable to lay down a rule as to the maximum number of subsections for a section. As a rough guide, try to have at least 2 section headings on each page. Subsection headings 114. If you keep sections short, you shouldn t need subsection headings. However, consider using them when you re amending a very long section or when the structure of an existing Act forces you to insert a very long section. 1 This was started by the Parliamentary Counsel of New South Wales. [s05pu511.v18.docx] [19 Dec 2013] [10:56 AM] Page 26